Legally Speaking-The Legal Basis for Library Video Surveilance
Legally Speaking-The Leg al Basis for Librar y Video Sur veilance
Bryan M. Carson <> 0 2 3
Western Kentucky University 0 2 3
0 2 3
Jack G. Montgomery 0 2 3
0 Western Kentucky University , USA
1 11067 , Bowling Green, Kentucky 42101-1067; Phone: 270-745-5007; Fax: 270-745-2275) , USA
2 Bruce Strauch , The Citadel
3 by Bryan M. Carson , J.D., M.I.L.S. (Associate Professor , Coordinator of Reference and Instructional Services, Associated Faculty - Library Media Education Program, Western Kentucky University Libraries, 1906 College Heights Blvd , USA
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Section Editors:
Legally Speaking — The Legal Basis for Library Video
Surveillance
Ssee ourselves. We often take our history,
ometimes it takes an outsider to make us
culture, and traditions for granted. In
many instances, it is only when an outsider asks
for clarification that we realize how much we
have subconsciously assumed about ourselves
and about our way of life.
This point was brought home to me recently by one of my colleagues at Western Kentucky
University. In 2009, Haiwang Yuan, the
library’s Webmaster, was selected by the
Institute for Museum and Library Services to
participate in a panel of U.S. librarians helping
to train library science students and practitioners
in China. After responding to audience
questions, Haiwang sent me the following email:
Q. What’s the legal basis for monitoring
the library with security cameras such
as those installed [at Western Kentucky
University]? We don’t agree even among
the speakers ourselves here, not to speak
of the audience.
This is one of those basic questions that we
almost never think about. The short answer
is that if a person is in a public or semi-public
place such as a library, his or her movements
are not subject to a reasonable expectation of
privacy. A library employee doesn’t need a
search warrant if he or she observes someone
stealing a book. There is not a reasonable
expectation of privacy in the person’s movements.
An employee or police officer could follow a
library patron around the library to see if he or
she is stealing books, but this is not practical to
do all the time. The security camera is simply a
technologically enhanced version of following
a person around.
As Americans, we tend to take this for
granted. Every store has a security system. Many
cities have mounted cameras to catch drivers
who run stoplights. And, of course,
many libraries use video
surveillance. But what is the actual legal
basis for this practice? Where
does it come from, and why
is it legal? The answer to the
question is much more difficult
than it would appear, because so
much of the answer depends upon
an assumed understanding of the
Anglo-American Legal System.
There are a number of different legal
systems in place in the world, but most countries
fall either into one of two categories. One is
called the “Common Law” or
“Anglo-American” system, and the other main type is called
the “Civil Law” system. In the Civil Law
system, laws that are passed are very specific and
very detailed. A judge can only enforce what is
actually found within the actual language of the
statute. He or she has no power to interpret or to
“apply” the statute to specific situations.
The Civil Law system involves positive
prescriptions and negative proscriptions, all
spelled out very specifically. In a Civil Law
system, the legislature could specifically grant
stores and libraries the right to use video
surveillance. This would be a prescriptive use of
legal power. A proscriptive use would be a
law making it illegal to use video surveillance
in public.
In the U.S. legal system, however, case law
and the judiciary are as important as statutes and
regulations. However, the Common Law or
Anglo-American system is very different. Laws
are much less specific in their language. While
many laws are still prescriptive or proscriptive,
there is also a great deal of latitude in between
with room for interpretation.
In the early centuries of the Common Law
system, judges made all laws; that is why it is
called “common” law (as opposed to legislative
law). The idea of parliaments, legislatures, or
congress passing a statue was an innovation.
In fact, many of the statutes have now codified
the original Common Law rules. The power of
judges to create rules was further constrained
in the U.S. by the language of the
Constitution. Indeed, the reasoning involved in passing
statutes is very different due to the enhanced
role of the common law judiciary.1 However,
modern Anglo-American judges still retain
the superior power of interpreting the
statutes, or in the U.S. of declaring
a statute unconstitutional.
In contrast, it is very rare for
a statute to be found
unconstitutional in Civil Law systems.
Often Civil Law countries have
special constitutional courts
that can adjudicate these kinds
of cases. In the o (...truncated)